Here is the truth: two federal Eastern Seaboard courts have enjoined Wilbur Ross, Chad Wolf and. . . "the one who shall not be named" (soon to depart 1600 Penn. -- in about 69 days, now), from trying to implement the so-called ban. There are also orders by federal judges in California, prohibiting Commerce from taking action against WeChat, or its users.
In sum, the government sees that there is no path consistent with the First Amendment, for this ill-starred nonsense. . . so it delays / withdraws -- knowing full well it has no power to move forward, in any event. Here's a bit from the TikTok ruling of last month -- so that the people may know it was not Wilbur Ross's largess, but the patient but forceful adherence to ordered liberty, from within the federal judiciary that caused calmer heads to prevail:
. . . .Section 1702(b)(3)’s express limitation applies to “commercial” informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of “informational materials,” then there would have been no reason for Congress to include the word “commercial” when defining the scope of § 1702(b)(3)’s limitation. United States v. Menasche, 348 U.S. 528, 538–39 (1955) (directing courts “to give effect, if possible, to every clause and word of a statue”).
To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout) is primarily a conduit of “informational materials.” In that sense, it is (among other things) a “medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials. . . .
There is something to [the government's counter-] argument, especially as foreign adversaries’ use of information and data (and the United States’ efforts to respond to and combat those efforts) becomes ever more important. But it does not find support in the text of the statute. In fact, subsection (b)(3) forecloses even the indirect regulation of news wires, another parallel kind of information medium that foreign adversaries could exploit to promote misinformation. To be sure, TikTok’s users share more than just news, but that fact makes it more likely that the prohibitions here fit within the plain meaning of subsection (b)(3).
Like the informational-materials limitation, § 1702(b)(1) states that IEEPA’s grant of authority does not include the “authority to regulate or prohibit, directly or indirectly. . . any. . . personal communication, which does not involve a transfer of anything of value.” 50 U.S.C. 1702(b)(1). It is undisputed that the Secretary’s prohibitions will have the effect of preventing Americans from sharing personal communications on TikTok. Reply, ECF No. 26, 12. As Plaintiffs put it, the prohibitions “will destroy this online community, first by requiring the removal of TikTok from. . . U.S. app stores, and, when the remaining Prohibitions come into effect on November 12, 2020, shutting down TikTok entirely. . . .”
For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction is granted as to paragraph 1 of the Commerce Identification. . . .
It is particularly delicious. . . that textualists (like Scalia before her, and ACB perhaps, herself -- to come) are absolutely foreclosed from arguing about a speculative intent of Congress, as we see above -- from Judge Nichols -- where the plain language of a statute prohibits something 1600 Penn wants to do. Delicious. And that means the courts need not even reach the clear first amendment violations, to strike this nonsense. [I will, perhaps immodestly, note that the able judge above repeated, nearly verbatim, my analysis -- from the first week of August 2020.] Onward, grinning.
नमस्ते
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